Bin Laden Corpse Photos Can Be Kept Secret, Court Rules

A laborer works as water is used to cool melted steel at the Kamani Tubes Ltd. plant in Wada, Maharashtra, India. Photographer: Brent Lewin/Bloomberg

May 21 (Bloomberg) -- Photos of Osama bin Laden’s corpse
and burial at sea were properly classified by U.S. officials and
can be withheld from the public, a federal appeals court ruled.

The U.S. Court of Appeals in Washington today rejected
arguments by Judicial Watch Inc., a conservative litigation
group, that the Central Intelligence Agency failed to show that
releasing images of bin Laden’s body -- specifically those
showing it cleaned and prepared for burial -- would harm
national security or reveal classified intelligence strategies.

“It is undisputed that the government is withholding the
images not to shield wrongdoing or embarrassment, but rather to
prevent the killing of Americans and violence against American
interests,” according to the ruling by U.S. Circuit judges
Merrick Garland, Judith Rogers and Harry Edwards.

The lawsuit, filed under the Freedom of Information Act,
involves 52 images of bin Laden after he was killed during a
raid by U.S. special operations forces on his compound in
Abbottabad, Pakistan, in May 2011. Those images were classified
as top-secret by the CIA.

“The court’s interpretation would allow terrorists to
dictate our laws,” Tom Fitton, Judicial Watch president, said
in an interview. “The decision seems to acknowledge the photos
were improperly classified but gives the Obama administration a
pass.”

Classification Procedures

The appeals court agreed the CIA may not have fully
followed classification procedures for the images. Even so, the
finding by a top CIA official that they had been correctly
classified “removes any doubt” about the propriety of the
designation, the court said.

In an interview in May 2011 with the CBS program “60
Minutes,” President Barack Obama said release of the “very
graphic” photos of the al-Qaeda leader’s corpse might be used
by extremists as propaganda to incite violence.

“We don’t trot out this stuff as trophies,” the president
said, according to a CBS transcript.

The government argued that the photos and any video are
exempt from disclosure because they reveal secret intelligence
operations and foreign activity and would pose a risk to
national security.

A lower-court judge sided with the government and dismissed
Judicial Watch’s lawsuit in April 2012.

Post-Mortem Pictures

Judicial Watch argued in court papers that during the Bush
administration there were instances when graphic post-mortem
pictures of war targets were made public without resulting in
harm to national security.

The group pointed in court filings to photographs of the
deceased sons of Saddam Hussein released by the Defense
Department in 2003. A “gruesome, post-mortem” photo of Abu
Musab al-Zarqawi, the Iraqi insurgent leader, was displayed in a
gold frame by the Army during a press conference in 2006, the
group said.

Judicial Watch questions why written descriptions of the
bin Laden’s burial have been unclassified while the images
remain under wraps. The group cited an e-mail released to the
Associated Press from a rear admiral who was present during the
burial describing the event.

Some of the images being sought depict “a somber burial in
which the body of the mastermind of the most deadly terrorist
attack of the U.S. was treated with the utmost dignity and
respect,” Michael Bekesha, a lawyer for the group, said in
court papers.

‘Grave Harm’

The appeals court said the government properly weighed the
concerns of senior military and intelligence officials who
thought that “releasing images of American personnel burying
the founder and leader of al-Qaeda could cause exceptionally
grave harm.”

The decision refers to declarations from these officials
citing prior violence and deaths due to an incorrect report by
Newsweek that military personnel at Guantanamo Bay had
desecrated the Koran and publication of a Danish cartoon of the
Prophet Muhammad.

“The CIA’s predictions of the violence that could
accompany disclosure of the images provide an adequate basis for
classification,” the judges said.

The case is Judicial Watch Inc. v. Department of Defense,
12-5137, U.S. Court of Appeals for the District of Columbia
(Washington).